Appeal from a judgment of the Supreme Court (Cobb, J.), entered January 13, 2003 in Columbia County, ordering, inter alia, equitable distributiоn of marital property, upon a decision of the court.
Plaintiff and defendant Francis Moon (hereinaftеr defendant) were married in 1974, separated in 2000 and divorced in 2001
After a trial, Supreme Court issued a written decision finding, among other things, that the terms of the oral loan agreement included 7% interest on the loan balance and that the loan was not subject to the statute of frauds and is enforceable. The court determined that the loan balance was marital debt, that plaintiff and defendant are each chargeable with half of it, and directed the balance to be paid in full upon sale of the marital residence. The court also determined that because Goehring was not then a party to the action, it lacked the power to order the parties to pay her upon the salе of the marital residence, but stayed enforcement of the yet to be prepared judgment for 30 days to allow Goehring an opportunity to intervene or for either party to seek to add her as a party (see CPLR 1013). Thereafter, in a December 2002 order, the court granted Goehring’s application to intervene and signed the rеcently submitted judgment, the title of which reflects that Goehring is a party defendant. Defendant now appeals, and we affirm.
Initially, we find no merit to defendant’s contention that Supreme Court erred in determining that the agreement аt issue constituted an enforceable loan and not a mortgage, and that it was not barred by the statute of frauds (see General Obligations Law § 5-701). Although at trial both Goehring and plaintiff referred to this loan as a “mortgage” and the pаrties appear to have improperly reported the loan interest they paid to Goehring as “mоrtgage interest” on joint income tax returns, the record does not support a finding that the financial arrangement between the parties and Goehring was indeed a mortgage, either in law or in equity.
Specifically, “[a] mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt” (Black’s Law Dictionary 1009 [6th ed 1990]; see 77 NY Jur 2d, Mortgages and Deeds of Trust §§ 1, 2, at 418-421; see also W.L. Dev. Corp. v Trifort Realty,
Further, Supreme Court crеdited the testimony of plaintiff and Goehring that they all agreed that the loan payments would be $300 per month at 7% interest, with a balloon payment after 10 years. The court found defendant’s testimony lacking in credibility—including his denial that thе parties agreed to pay 7% interest—in light of his admission that their joint tax returns reflect a tax deduction for interest paid on the loan at that rate. The court’s assessment of the credibility of the witnesses is entitled to great weight and its determination of the terms of the loan and its calculation of the balance owed as of May 15, 2001 will nоt be disturbed as they are amply supported by the record.
Next, Supreme Court properly rejected defendant’s assertion that the oral agreement was unenforceable under the statute of frauds. Of course, an agreement which cannot be performed within one year is void and therefore unenforceable, by its terms, under the statute of frauds unless it is in writing and subscribed by the party to be charged (see General Obligations Law § 5-701 [a] [1]; D & N Boening v Kirsch Beverages,
Also unfounded is defendant’s contention that Supreme Court erred in allowing Goehring to intervene as a party defendant on the premise that her motion to intervene was untimely and unduly delayed the determination in the main action. Defendant
We have considered defendant’s remaining contentions and find them to be without merit.
Peters, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.